Exhibit
10.66


 


PURCHASE AGREEMENT


 


 


This Purchase Agreement (this “Agreement”) is made and
entered into as of the 
      day of
       , 2003, by and between Zamba
Corporation, a Delaware corporation (the “Company”), and
             (the
“Purchaser”).


 


WHEREAS, the Company owns shares of Series A Preferred
Stock, $.0001 par value per share (“Zamba’s NextNet Stock”), of NextNet
Wireless, Inc., a Delaware corporation (“NextNet”), pursuant to the Series A
Preferred Stock Purchase Agreement dated as of September 21, 1998 between Zamba
and NextNet (the “Zamba Purchase Agreement”); and


 


WHEREAS, Zamba’s NextNet Stock can be converted into
common shares of NextNet at the exchange ratio of three shares of NextNet
common stock for every one share of Zamba’s NextNet Stock; and


 


WHEREAS, Zamba’s NextNet Stock is also subject to the
Fourth Amended and Restated Investors’ Rights Agreement dated as of October 15,
2003 among the Company, NextNet and the investors and founders identified
therein (the “Investors’ Rights Agreement”), Right of First Refusal Agreement
dated as of September 21, 1998 among the Company, NextNet and the Series B
purchasers identified therein (the “Right of First Refusal Agreement”), and the
Fourth Amended and Restated Voting Agreement dated October 15, 2003, among
NextNet, the Company and certain other investors (the “Voting Agreement”); and


 


WHEREAS, the Purchaser is thoroughly familiar with
NextNet’s business, financial condition and prospects; and


 


WHEREAS, the Purchaser
desires to purchase from the Company and the Company desires to sell to the
Purchaser certain of its shares of Zamba’s NextNet Stock; and


 


WHEREAS, the Purchaser acknowledges that there is no
established trading market or other current valuation for Zamba’s NextNet
Stock;


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:


 


1.             Purchase
and Sale of Preferred Stock.  In
consideration of this Agreement, the Company hereby agrees to sell to the
Purchaser, and the Purchaser hereby agrees to purchase from the Company, shares
of Zamba’s NextNet Stock in accordance with the following terms:


 


(a)           The Company hereby sells to the
Purchaser, and the Purchaser hereby purchases from the Company, a total of
      shares of Zamba’s NextNet Stock (the
“Shares”), which is determined by dividing the aggregate purchase price of $
          by a per share
purchase price of $1.50 per share. 
Promptly upon execution of this Agreement, and as a condition to the
Company taking the steps outlined in subparagraph


 

















 


(b) below, the Purchaser shall pay the full amount of
the purchase price to the Company by check or wire transfer in immediately
available funds to an account designated in writing by the Company.


 


(b)           Promptly upon receipt of the purchase
price, the Company shall deliver to NextNet a notice pursuant to the Right of
First Offer set forth in Section 1.1 of the Right of First Refusal Agreement.


 


(c)           If NextNet elects to exercise its
right of first refusal pursuant to Section 1.1 of the Right of First Refusal
Agreement, the purchase price shall be refunded to the Purchaser within five
business days of the Company’s receipt of full payment from NextNet for the
Shares, without interest, and the Purchaser shall not receive any of the
purchased shares of Zamba’s NextNet Stock. 
If NextNet declines to exercise its right of first refusal, the Company
shall, within five business days after the Company’s receipt of NextNet’s
notice to decline its right, notify each investor in NextNet eligible under the
Right of First Refusal Agreement of its opportunity to exercise its pro rata
right of first refusal pursuant to the Right of First Refusal Agreement.


 


(d)           If any of the eligible investors in
NextNet elects to exercise its pro rata right of first refusal pursuant to
Section 1.1 of the Right of First Refusal Agreement, the Company will forward
to the Purchaser the payments the Company receives from such investor(s) within
five business days of the Company’s receipt of such payment, and the number of
shares of Zamba’s NextNet Stock that the Purchaser will receive pursuant to
this Agreement shall be reduced on a share-for-share basis basis.  Promptly after the expiration of the
investor pro rata right of first refusal period, the Company shall deliver to
the Purchaser a certificate registered in the Purchaser’s name representing the
number of shares of Zamba’s NextNet Stock purchased.


 


2.             Representations
and Warranties of the Purchaser.  As
a material inducement for the Company’s issuance and sale of the shares of
Zamba’s NextNet Stock, the Purchaser represents, warrants, covenants and
acknowledges to the Company that:


 


(a)           The Purchaser understands that the
sale of the shares of Zamba’s NextNet Stock pursuant to the terms hereof has
not been registered under the Securities Act of 1933, as amended (the
“Securities Act”), or applicable state securities laws.  Instead, the Company is selling the Shares
pursuant to exemptions from such laws and in doing so is relying on, among
other things, the Purchaser’s representations, warranties, covenants and
acknowledgements contained herein.


 


(b)           The Purchaser is an “accredited
investor” as such term is defined in Rule 501(a) of Regulation D under the Securities
Act, and as further represented in Section 3 of this Agreement.


 


(c)           The Purchaser has sufficient
knowledge and experience in financial and business matters that the Purchaser
is capable of evaluating the merits and risks of investing in the shares of
Zamba’s NextNet Stock.


 


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(d)           The Purchaser has been provided with
or given access to such information concerning NextNet, including, but not
limited to, its business, financial condition and prospects (collectively,
“NextNet’s Business”), as the Purchaser has requested and/or deems necessary
and has utilized such information to the Purchaser’s satisfaction for the
purpose of making an investment in the shares of Zamba’s NextNet Stock pursuant
to the terms hereof.  The Purchaser
hereby acknowledges that it has made its own independent investigation of
NextNet’s Business and that it is not relying on any information which may been
provided by the Company, including, but not limited to, the Company’s officers,
directors, employees, agents and other representatives (collectively, the
“Company Representatives”), in connection with its purchase of the shares of
Zamba’s NextNet Stock.  The Purchaser
hereby agrees to indemnify and hold harmless each Company Representative in
connection with any loss, claim or demand which the Purchaser now has or in the
future may have in connection with its purchase of the shares of Zamba’s
NextNet Stock pursuant to the terms hereof.


 


(e)           The Purchaser understands that the
purchase of the shares of Zamba’s NextNet Stock is a highly speculative
investment and involves a high degree of risk. 
The Purchaser acknowledges that it may not ever be able to resell the
shares of Zamba’s NextNet Stock purchased pursuant to the terms hereof, whether
at the price paid by the Purchaser or otherwise.  The Purchaser believes that the investment in the shares of
Zamba’s NextNet Stock is suitable based upon the Purchaser’s investment
objectives and financial needs and the Purchaser has adequate means of
providing for current financial needs and personal contingencies, has no need
for liquidity of investment with respect to the shares of Zamba’s NextNet Stock
and can afford a complete loss of such investment.


 


(f)            The Purchaser understands and acknowledges
that certain of Zamba’s directors and officers are also directors and/or
officers of NextNet, which may give them material inside knowledge regarding
NextNet’s business, including but not limited to material information about
NextNet’s technology, clients, client prospects, financial data, employees, and
investors, and the Purchaser represents that he, she, or it has not relied at
all on any statement, representation, affirmation, or omission made or not made
by any director, officer, employee, or other representative of Zamba or NextNet
in connection with the Purchaser’s decision to purchase Zamba’s NextNet Stock
and waives any claim, lawsuit, liability, or damage, whether known or unknown,
that may future asserted against Zamba or NextNet, or any and all of the
directors, officer, employees, and representatives of each of Zamba and NextNet
(the “Waived Parties”) that the Waived Parties benefited or the Purchaser
suffered detriment as a result of any material inside knowledge held by the
Waived Parties that is or is not disclosed to the Purchaser in connection with
the purchase of Zamba’s NextNet Stock hereunder.


 


(g)           The Purchaser is acquiring the shares
of Zamba’s NextNet Stock for its own account, for investment purposes only, and
without the intention of reselling or redistributing the same.


 


(h)           The Purchaser is aware that, in the
view of the Securities and Exchange Commission, a purchase of the shares of
Zamba’s NextNet Stock with an intent to resell by reason of any foreseeable
specific contingency or anticipated change in market values,


 


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or any change in NextNet’s condition, or in connection
with a contemplated liquidation or settlement of any loan obtained for the
acquisition of the shares of Zamba’s NextNet Stock and for which such shares
were pledged, would constitute an intent inconsistent with the foregoing
representation.


 


(i)            If, contrary to the Purchaser’s
foregoing intentions, it should later desire to dispose of or transfer any of
the shares of Zamba’s NextNet Stock in any manner, the undersigned shall not do
so without (i) first obtaining an opinion of counsel satisfactory to NextNet
that such proposed disposition or transfer may lawfully be made without
registration pursuant to the Securities Act and applicable state securities
laws or (ii) registering the resale of such shares under the Securities
Act and applicable state securities laws.


 


(j)            Neither the Company nor NextNet has
any obligation to register the shares of Zamba’s NextNet Stock for resale under
the Securities Act or any applicable state securities laws, or to take any
other action which would facilitate the availability of federal or state
registration exemptions in connection with any resale of such shares.  Accordingly, the Purchaser may be prohibited
by law from selling or otherwise transferring or disposing of the Shares and
likely will may have to bear the economic risk of its investment in NextNet for
an indefinite period.


 


(k)           The Purchaser, if other than an
individual, represents that (a) the Purchaser was not organized for the
specific purpose of acquiring the shares of Zamba’s NextNet Stock; and (b)         this Agreement has been duly authorized
by all necessary action on the part of the Purchaser, has been duly executed by
an authorized officer or representative of the Purchaser, and is a legal,
valid, and binding obligation of the Purchaser enforceable in accordance with
its terms.


 


(l)            There is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of Purchaser who might be entitled to any
fee or commission from the Company or NextNet upon consummation of the
transactions contemplated by this Agreement.


 


(m)          Purchaser agrees to be bound by the
transfer restrictions described in Section 3.6 of the Zamba Purchase Agreement.


 


(n)           Purchaser acknowledges that the
provisions of the Right of First Refusal Agreement shall continue to apply to
the shares of Zamba’s NextNet Stock owned by Purchaser.


 


(o)           Purchaser acknowledges that he or she
has already received a copy of the Investors’ Rights Agreement.  Purchaser understands that, pursuant to the
terms of the Investors’ Rights Agreement, the registration rights described in
Section 1 and the right of first offer described in Section 2.6 thereof have
not been assigned to the Purchaser by the Company.  Accordingly, the Purchaser is not entitled to any registration
rights or rights of first offer with respect to the Purchaser’s ownership of
the shares of Zamba’s NextNet Stock purchased pursuant to the terms hereof.


 


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(o)           Purchaser acknowledges that the
shares of Zamba’s NextNet Stock shall continue to be subject to the terms and
conditions of the Zamba Purchase Agreement, the Investors’ Rights Agreement,
and the Voting Agreement, except for the provisions of those agreements that,
by their nature, are not transferable or assignable to Purchaser.


 


3.             Accredited Investor Status.               The Purchaser is an “accredited
investor” as defined in Rule 501(a) of Regulation D of the Securities Act,
because the Purchaser meets at least one of the following criteria (must check
one):


 


The
Purchaser is a natural person whose individual net worth, or joint net worth
with his or her spouse, exceeds $1,000,000 at the time of the Purchaser’s
purchase; or


 


The
Purchaser is a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with the
Purchaser’s spouse in excess of $300,000 in each of those years and who
reasonably expects to reach the same income level in the current year; or


 


The
Purchaser is either (i) a bank as defined in Section 3(a)(2) of the Securities
Act, or any savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its individual or
fiduciary capacity, any broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934, (ii) an insurance company as defined in
Section 2(13) of the Securities Act, (iii) an investment company registered
under the Investment Company Act of 1940 or a business development company as
defined in Section 2(a)(48) of such Act, (iv) a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958, or (v) an employee benefit
plan within the meaning of Title I of the Employee Retirement Income Security
Act of 1974, if the investment decision is made by a plan fiduciary, as defined
in Section 3(21) of such Act, which plan fiduciary is either a bank, savings
and loan association, insurance company or registered investment adviser, or if
the employee benefit plan has total assets in excess of $5,000,000 or, if a
self directed plan, with investment decisions made solely by persons who are
accredited investors; or


 


The
Purchaser is a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or


 


The
Purchaser is an organization described in Section 501(c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the shares of
Zamba’s NextNet Stock, with total assets in excess of $5,000,000; or


 


The
Purchaser is a director or executive officer of NextNet; or


 


The
Purchaser is a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the shares of Zamba’s NextNet Stock, whose
purchase


 


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is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D of the
Securities Act; or


 


The
Purchaser is any entity in which all of the equity owners are accredited
investors.


 


4.             Representations and Warranties
of the Company.  As a material
inducement for the Purchaser’s purchase of the shares of Zamba’s NextNet Stock
to be purchased pursuant to the terms hereof, the Company represents, warrants,
covenants and acknowledges to the Purchaser that:


 


(a)           The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own its
properties and to carry on its business as now being conducted and presently
proposed to be conducted.


 


(b)           The shares of Zamba’s NextNet Stock
being sold to the Purchaser pursuant to the terms hereof will be transferred to
the Purchaser free and clear of any liens, encumbrances or other restrictions,
other than restrictions on transfer that are contained in the Zamba Purchase
Agreement, the Right of First Refusal Agreement, the Investors Rights
Agreement, the Voting Agreement, all of which as they may be amended from time
to time, or are otherwise set forth herein or imposed by applicable securities
laws.


 


5.             Merger, Consolidation or Other
Change in Control of the Company or NextNet.


 


(a)           If prior to the delivery of the
shares of Zamba’s NextNet Stock the Company shall at any time consolidate with
or merge into to another corporation (where the Company is not the continuing
corporation after such merger, consolidation, sale of all or substantially all
of its assets or other change-in-control), or the Company shall sell, transfer
or lease all or substantially all of its assets, then, in any such case, the
Purchaser thereupon (and thereafter) shall continue to be entitled to be bound
by the terms of this Agreement and shall be entitled to receive the number of
shares of Zamba’s NextNet Stock determined in accordance with Section 1 above.


 


(b)           If prior to the delivery of the
shares of Zamba’s NextNet Stock NextNet shall at any time consolidate with or
merge into another corporation (where NextNet is not the continuing corporation
after such merger, consolidation or other change-in-control), or NextNet shall
sell, transfer or lease all or substantially all of its assets, then, in any
such case, the Purchaser thereupon (and thereafter) shall be entitled to
receive the number of shares of Zamba’s NextNet Stock (or the proceeds
resulting from the sale of such shares in connection with such merger,
consolidation, or other change-in-control) determined in accordance with
Section 1 above.


 


6.             Insolvency or Bankruptcy of the
Company or NextNet.  Upon the
insolvency or bankruptcy (whether voluntary or involuntary) of the Company or
NextNet, or the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or


 


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other similar official)
of the Company or NextNet or any substantial part of the Company’s or NextNet’s
property, or any general assignment for the benefit of creditors of the Company
or NextNet, the Purchaser shall be an unsecured general creditor of the Company
or NextNet, as applicable, and shall not have any security interest or other
rights in connection with this Agreement or the shares of Zamba’s NextNet Stock
to be purchased hereunder.


 


7.             Miscellaneous.


 


(a)           Binding Effect.  This Agreement shall be binding upon and inure
to the benefit of and be enforceable against the parties hereto and their
respective successors and permitted assigns.


 


(b)           Governing Law.  This Agreement shall in all respects be
governed by, and enforced and interpreted in accordance with, the laws of the
State of Minnesota, except with respect to its rules relating to conflicts of
laws.


 


(c)           Legends.  The shares of Zamba’s NextNet Stock issued
to the Purchaser pursuant to this Agreement shall contain the following
legends:


 


THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION FROM REGISTRATION UNDER THE
FOREGOING LAWS.  ACCORDINGLY, THESE
SHARES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT (i) AN
OPINION OF COUNSEL SATISFACTORY TO NEXTNET WIRELESS, INC. THAT SUCH SALE,
TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR (ii) SUCH
REGISTRATION.


 


THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG NEXTNET
WIRELESS, INC. AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE
PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.


 


THE
SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A


 


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CERTAIN
RIGHT OF FIRST REFUSAL AGREEMENT BY AND BETWEEN THE STOCKHOLDER, NEXTNET
WIRELESS, INC. AND CERTAIN HOLDERS OF PREFERRED STOCK OF THE CORPORATION.  COPIES OF SUCH AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.


 


(d)           Notices.  All notices, consents, requests, demands,
instructions or other communications provided for herein shall be in writing
and shall be deemed validly given, made and served when (a) delivered
personally, (b) sent by certified or registered mail, postage prepaid,
(c) sent by reputable overnight delivery service, or (d) sent by
telephonic facsimile transmission, and, pending the designation of another
address, addressed as follows:


 


	
  If to the Company:

  	
   

  	
  Zamba Corporation

  
	
   

  	
   

  	
  3033 Excelsior Blvd., Suite 200

  
	
   

  	
   

  	
  Minneapolis, Minnesota 55416

  
	
   

  	
   

  	
  Attn:  Chief
  Financial Officer

  
	
   

  	
   

  	
  Fax: (952) 893-3948

  
	
   

  	
   

  	
   

  
	
  If to the Purchaser:

  	
   

  	
   

  



 


 


(e)           Entire Agreement and Counterparts.  This Agreement evidences the entire
agreement between the Company and the Purchaser relating to the subject matter
hereof and supersedes in all respects any and all prior oral or written
agreements or understandings.  This
Agreement may not be amended or modified, and no provisions hereof may be
waived, except by written instrument signed by both the Company and the
Purchaser.  This Agreement may be
executed in counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one Agreement.


 


(f)            The Purchaser and the Company
understand the meaning and legal consequences of the agreements,
representations and warranties contained herein.  The Purchaser and the Company agree that such agreements,
representations and warranties shall survive and remain in full force and
effect after the execution hereof and payment for the shares of Zamba’s NextNet
Stock to be purchased pursuant to the terms hereof.


 


(g)           Any controversy or claim arising out
of or relating to this Agreement, the Purchaser’s purchase of the shares of
Zamba’s NextNet Stock or any breach of this Agreement, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Securities Arbitration Rules, and judgment on the award rendered by
the Arbitrator(s) may be entered in any court having jurisdiction thereof.


 


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(h)           Headings.  Section headings used in this Agreement have
no legal significance and are used solely for convenience of reference.


 


(i)            Expenses.  Each party shall pay for its own legal,
accounting and other similar expenses incurred in connection with the
transaction contemplated by this Agreement.


 


IN WITNESS WHEREOF, the
Company and the Purchaser have executed this Agreement as of the date set forth
in the first paragraph.


 


 


	
  THE
  COMPANY:

  	
  THE
  PURCHASER:

  
	
   

  	
   

  
	
  ZAMBA
  CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


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